“One more such victory will utterly undo me” – King Pyrrhus of Epicurus (279 BC)
There is no more succinct summary of Supreme Court’s ruling on the Affordable Care Act than the above quote.
On Thursday, the SCOTUS upheld the ACA by a slim 5-4 margin, with Chief Justice Roberts serving as the surprise swing vote. The cost of this victory may well be the presidency, legislation from the New Deal and Great Society eras, and future progressive attempts for government solutions.
The nuances and legalese employed by the Court’s conservative justices set unprecedented limits on the role of the federal government and inappropriately re-brand the individual mandate in a manner that distorts its essence and intention.
The Court ruled on four matters in National Federation of Independent Business v. Sebelius. The first issue was whether the case could even be heard under the Anti-Injunction Act, which holds the constitutionality of a tax/penalty cannot be challenged until such a time when one must pay it. Another question answered by the court was the legality of the Medicaid expansion found in the ACA.
The undisputed heart of the case concerned the individual mandate. On this matter, the court issued rulings on the constitutionality of the mandate and whether or not it could be removed from the law with other parts remaining intact – the mandate’s severability.
Chief Justice John Roberts authored the majority opinion of this landmark case, joined by liberal Justices Ginsburg, Sotomayor, Breyer, and Kagan. Surprisingly, the Commerce Clause, which gives Congress the ability to regulate interstate commerce, did not serve as the rationale for the mandate’s legality. Rather, the mandate was found to be constitutional under Congress’ broad power to tax to fund social welfare programs. As such, the mandate represents a tax on the microscopic percentage of Americans who will choose to forego purchasing insurance though they can afford it.
Prior to this judgment, Obamacare was attacked as a coercive socialist policy and gross overreach by big government, criticisms sharply directed at the individual mandate. Four conservative justices (Scalia, Kennedy, Thomas, and Alito) certainly agreed, voting that the mandate was unconstitutional and that the ACA (including Medicaid expansion) should be rejected in its entirety. The dissent, authored by Scalia, decried the ACA as inflexible health-care regulation that is inoperable without the (unconstitutional) mandate. Justice Kennedy, thought to be a possible swing vote, wrote in a separate dissent that the rewriting of the mandate as a tax is an unprecedented move – interpreting the statue in something other than Congress’ wording.
Precedent. Wouldn’t it be nice if the dissenters showed some respect for it in their rulings?
In Wickard v. Filburn, the Court ruled that the Commerce Clause enabled the federal government to limit the amount of wheat grown for individual consumption by a farmer. Yet, Chief Roberts used a slippery slope argument to justify the unconstitutionality of the mandate under the Commerce Clause. In the Chief’s eyes, if the federal government can force you to buy health insurance, a future Orwellian Vegetarian Party may mandate the purchase of broccoli – an affront to all patriotic, red-blooded, red meat-eating Americans. Of course, this is the Roberts Court – which ignored precedent regarding the limitation of corporate political expenditures – so we ought not expect too much of them.
The net result is that a majority of the Court found the mandate to be unconstitutional under the Commerce Clause. Chief Robert’s ruling implies that federal government overstepped its authority by requiring Americans to purchase health insurance. This question was at the political heart of the case, and the decision depicts a “rigid reading of the Clause [that] makes scant sense and is stunningly retrogressive” according to Justice Ginsburg.
Justice Ginsburg’s concurrence (also a partial dissension) dissects the dissent of Scalia and the Chief’s unwillingness to recognize the Commerce Clause as a basis for the ACA’s legality. Simple summary of her argument:
The health-care market has distinct characteristics of interstate commerce. Spending on health care accounts for nearly twenty percent of the US economy and is set to double within the next decade. As well, this is a market that everyone is guaranteed to enter. Simply, everyone gets sick and needs to see a doctor – this is an inevitable fact of life. Uninsured Americans are not refused care, and their costs are borne by all those who do have insurance, accounting for $1000 of premiums for family plans per annum.
While conservatives mourn Robert’s ruling, inquisitive minds recognize the Chief’s shrewdness. Public approval of the Roberts Court currently rests at 44%, down from 80% during the 1990s. Another threat to this court’s legitimacy: three quarters of Americans believe their votes are motivated by political ideologies.
Chief Roberts was afforded – and took – the opportunity to preserve the image of his court by siding with the four liberal justices. But his ruling did not demonstrate his sudden conversion to logic and precedent. A more appropriate analogy would be that Roberts is preserving his judicial capital in the manner in which Muhammad Ali used the rope-a-dope strategy to preserve his energy for the inevitable counterattack on George Forman. The next season of this legal saga – ‘Revenge of the Roberts’ – is likely to star retrogressive rulings on gun control, voting rights, campaign finance, and even the Civil Rights Act. Sadly, these cases and decisions will receive much less media coverage than the ACA.
Making the assumption that Roberts’ ruling was (indeed) politically motivated – while additionally serving as a façade of his court’s legitimacy – it is instructive to consider the political ramifications. The unconstitutionality of the ACA would’ve been a double-edged sword for the GOP. Invalidating Obama’s largest – but by no means only – accomplishment would have been demoralizing to liberals, but conservatives would then have to reveal their plans for healthcare, which, um, do not seem to have captured the hearts, minds, or even the attention of the electorate. Wonder why that is?
It is unlikely, given Governor Romney’s manic obsession with the economic management of the country, that health care will be an important topic in the presidential election. Congressional races are a completely different story, especially considering that the Ryan Budget vs. ACA question featured prominently in special elections over the past few years. In all likelihood, the ceasefire on health care on the presidential level may negatively impact Democrats’ chances in the House and Senate, for polling shows that a majority many support individual aspects of the act, but also reject it as a whole. Messaging (as always) from the left on health care has been a failure.
Tax. No word, not even flip-flopper, carries a more negative weight in American politics. By re-labeling the individual mandate as something that it isn’t, Roberts enables the right to attach this toxic three-letter political epithet to President Obama. The individual mandate as a tax is not only a beneficial GOP talking point, but also has relevance to the repeal process. Taxes can be repealed through a simple majority through the reconciliation process rather than a filibuster-proof 60-vote majority.
The final word: despite the court’s reprieve, the ACA relies on a Blue November to be fully enacted.
If not, at least all those righties moving to Canada to protest the Supreme Court’s ruling might go back home…
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